Labor and Employment Law

Only the Beginning? First Circuit Panel Invalidates Key Provision of Defense Of Marriage Act

In May 2012, a three-judge panel of the U.S. Court of Appeals for the First Circuit held that the definition of "marriage" set forth in Section 3 of the Defense of Marriage Act ("DOMA") does not pass constitutional muster. If the decision is upheld by the Supreme Court, repercussions (and confusion) could be immense.


Section 3 of the Defense of Marriage Act ("DOMA") defines marriage as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

The decision arises out of two companion cases, Gill v. Office of Personnel Management, and Massachusetts v. United States HHS. In Gill, seven same-sex couples married in Massachusetts and three surviving spouses of such marriages brought suit under the Equal Protection Clause to enjoin federal agencies and officials from enforcing DOMA to deprive the couples of federal benefits available to opposite-sex married couples in Massachusetts. More specifically, Gill challenged DOMA because it prevents:

  • same-sex married couples from filing joint federal tax returns
  • the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits, and
  • federal employees from sharing their health insurance and certain other medical benefits with same-sex spouses.

The companion case brought by the Commonwealth of Massachusetts challenged Section 3 as incompatible with the Spending Clause and the Tenth Amendment, asserting the harm the Commonwealth would suffer if, based on DOMA, the federal government revoked federal funding for programs tied to DOMA's opposite-sex marriage definition, such as Massachusetts' state Medicaid program and veterans' cemeteries.

In Gill, the United States District Court for the District of Massachusetts held that Section 3 violated the Equal Protection Clause; in the companion case, the court agreed with the Commonwealth that Section 3 violated the Spending Clause and the Tenth Amendment. In addition to declaring Section 3 unconstitutional, the lower court enjoined federal officials and agencies from enforcing it, but stayed the injunctive relief pending appeals.

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